Alexander v. Alterman Transport Lines, Inc., MM-450

• Decision Date: 04 August 1980
• Docket Number: No. MM-450,MM-450
• Citation: 387 So.2d 422
• Parties: Hooper ALEXANDER, III, as Administrator of the Estate of Margaret M. Alexander, Deceased, Appellant, v. ALTERMAN TRANSPORT LINES, INC., a Florida Corporation, and Charles E. Penley, Appellees.
• Court: Florida District Court of Appeals

Page 422

387 So.2d 422

Hooper ALEXANDER, III, as Administrator of the Estate of Margaret M. Alexander, Deceased, Appellant, v. ALTERMAN TRANSPORT LINES, INC., a Florida Corporation, and Charles E. Penley, Appellees.

No. MM-450.

District Court of Appeal of Florida, First District.

Aug. 4, 1980.

Rehearing Denied Sept. 11, 1980.

Joseph D. Farish, Jr. and Louis L. Williams of Farish, Farish & Romani, West Palm Beach, for appellant.

E. Harper Field and Albert W. Whitaker of Keen, O'Kelley, Field & Ellis, Tallahassee, for appellees.

LARRY G. SMITH, Judge.

Appellant, plaintiff below, urges that the trial court committed error: (1) in allowing the defendant to introduce evidence of Ms. Alexander's age, (2) in not receiving into evidence the tax returns of defendant Alterman and in not imposing sanctions for Alterman's failure to produce net worth statements, (3) in refusing to admit interrogatory answers. The defendant cross-appeals, urging that the trial judge erred in denying its motion for a directed verdict on the claim for punitive damages. As to the points raised by plaintiff, we find no reversible error and affirm; as to defendant's cross-appeal, we affirm.

Alterman Transport Lines, Inc., and Charles Penley were sued for compensatory and punitive damages for an accident caused by employee Penley, in the operation of Alterman's truck, which resulted in Ms. Alexander's death.

After plaintiff had introduced evidence regarding Ms. Alexander's personal life, the defendant, on cross, elicited her age and despite plaintiff's objection, this information was allowed to go to the jury. Under the circumstances, even if we agree that the age of the decedent was not material to any issue in the case, the plaintiff introduced matters which were just as immaterial, so that plaintiff cannot be heard to complain. Applying the rule that "Harmful error does not result unless such evidence is pursued to the point that it is calculated to unduly excite the passions and prejudices of the jurors," Le Fever v. Bear 113 So.2d 390, 392 (Fla. 2nd DCA 1959), we find any error on this point was harmless, and does not require reversal.

In Tallahassee Democrat, Inc. v. Pogue, 280 So.2d 512 (Fla. 1st DCA 1973), this court ruled that tax returns and profit and loss statements are not competent evidence of net worth and are, therefore, inadmissible. The Florida Supreme Court, in Tennant v. Charlton, 377 So.2d 1169 (Fla.1979), disapproved of this decision and adopted the decision of the Second District in Charlton v. Tennant, 365 So.2d 418 (Fla. 2nd DCA 1978), holding that a plaintiff seeking punitive damages is entitled to "discovery" of defendant's income tax returns and business statements, subject to control of the trial judge under Florida Rule of Civil Procedure 1.280(c), permitting the court to make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires. We assume from the holding in Tennant v. Charlton, supra, that such tax returns and other business statements would be admissible in a case deemed to warrant submission of the punitive damage claim to the jury; but it by no means follows that tax returns are the only method of establishing financial resources. Furthermore, we do not foreclose the possibility that circumstances might justify the trial court's refusal to allow their introduction into evidence, for good cause shown, where equally conclusive evidence of financial worth in other forms is available. However, since the exclusion in this case was not based upon any good cause shown, we must conclude that it was error for the trial court to exclude the tax returns.

Although precluded from introducing Alterman's tax returns, the plaintiff did introduce Alterman's latest financial statement and other evidence sufficient to show a net worth of almost $10,000,000.00, and profits for the previous year of over $1,000,000.00. The jury thus had before it ample evidence of financial worth upon which to base a much larger punitive damage award if it had chosen to do so. We note from Rinaldi v. Aaron, 314 So.2d 762 (Fla.1975), that evidence of financial worth, although admissible, is not a requisite to an award of punitive damages, and further:

. . . that in determining the amount of punitive damages, the jury may consider the nature, extent, and enormity of the wrong, the intent of the party committing it and all circumstances attending the particular incident, as well as any mitigating circumstances which may operate to reduce without wholly defeating such damages, . . . (Id. at 763).

Obviously, other factors present in this case militated against a higher award. Our review of the entire proceeding convinces us that prejudice to plaintiff by the exclusion of Alterman's tax returns has not been shown, and consequently, the error does not warrant reversal.

Plaintiff-appellant cites no authority to this court supporting his contention that his oral motion for sanctions, made during trial, warrants reversal. Sanctions should be imposed only where the refusal was willful or done in bad faith, Herold v. Computer Components International, Inc., 252 So.2d 576 (Fla. 4th DCA 1971). We find the record as presented inadequate to support a finding that sanctions should have been imposed, Walker v. Senn, 340 So.2d 975 (Fla. 1st DCA 1976).

Plaintiff is correct in asserting that interrogatories are admissible into evidence, Boutwell v. Bishop, 194 So.2d 3 (Fla. 1st DCA 1967), Camerano v. Camerano, 340 So.2d 1200 (Fla. 4th DCA 1976), Florida Rules of Civil Procedure, Rule 1.340. Furthermore, although the court rejected the interrogatories in toto, a proffer was still necessary in order for this court to determine whether the error requires reversal. Mitchell v. State, 321 So.2d 108 (Fla. 1st DCA 1975), cert. dism., 345 So.2d 425 (Fla.1977). Furthermore, since plaintiff did introduce depositions of corporate officers and expert testimony regarding Alterman's net worth, we conclude that the information sought to be produced by means of the answers to interrogatories would be cumulative at best. All things considered, we also find this error does not require reversal.

We turn next to appellee Alterman's cross-appeal seeking reversal of the award of punitive damages. Appellee contends that the evidence tending to show that its driver, Penley, was intoxicated when he appeared at the terminal on the morning of the accident, and that Alterman either knew or in the exercise of reasonable care should have known of his condition when he took charge of the truck, demonstrates at best only gross negligence, which is insufficient for the award of punitive damages, citing Ellis v. Golconda Corporation, 352 So.2d 1221 (Fla. 1st DCA 1977), and Clooney v. Geeting, 352 So.2d 1216 (Fla. 2nd DCA 1977).

In Ellis v. Golconda, supra, this court held that the evidence did not rise to the level of that wanton, reckless, malicious or oppressive character required to support an award of punitive damages against the corporate employer. However, since the facts are not remotely similar to the facts in this case, no comparison of the two cases can be made so as to be of any assistance in deciding this case.

In Clooney v. Geeting, supra, the court held that the trial judge did not commit error in striking Clooney's claim for punitive damages against a corporate employer based on allegations...